2017 Harvest

Friday, April 9, 2010

The Green Energy Act 2009 (GEA) placed a priority on expanding Ontario’s use of clean and renewable sources of energy, including wind power. A key element of the GEA is a new integrated approval process that establishes clear up-front requirements for most renewable energy projects. These requirements are outlined under the Ministry of the Environment’s (MOE) Renewable Energy Approval (REA) regulation (O.Reg. 359/09) and the Ministry of Natural Resource’s (MNR) Approval and Permitting Requirements Document (APRD).

The REA regulation describes the requirements for wind power projects related to significant natural features, including significant wildlife habitat. Bats are an important part of Ontario’s biodiversity. To provide further clarity and certainty on the renewable energy approval requirements for wind power, MNR has prepared updated draft 2010 Guidelines for application to both Crown and private lands.

The 2010 Draft Guidelines address the new requirements of the REA regulation, incorporate new North American science and information and provide guidance on identifying and addressing potential negative effects on bats and bat habitats during the planning, construction and operation of wind power projects in Ontario by:

removing the previous requirement for pre-construction monitoring, as results indicate that this information was not useful to assessing the impact of wind turbine development on bats;

identifying methods for evaluating the significance of candidate bat significant wildlife habitat and adopting a habitat setback approach, with assessment and monitoring based on proximity to significant habitat;

establishing three years of post construction bat mortality monitoring requirements for all onshore wind power projects, via an environmental effects monitoring plan;

including for the first time, guidance for offshore wind projects that, in the absence of practical assessment and monitoring methods in offshore environments, uses mandatory mitigation as a precautionary approach to protecting migratory bats; and

establishing a threshold approach to bat mortality (10 bats/ turbine/year), upon which mandatory operational mitigation would be required.

This operational mitigation would consist of reducing turbine blade cut-in speed/ feathering of 5.5 metres/second and would be applied for a 10 week period during peak bat activity (July-October). This mitigation is deemed to be the best approach, based on studies that identify up to 70% reduction in fatalities and only a 0.3 - 1% loss of energy production.

Purpose of Policy:

To give notice of and invite comment on MNR’s proposed Bats and Bat Habitats: Guidelines for Wind Power Projects (2010).

Other Information:

The draft 2010 Guidelines is intended to support the implementation of the REA regulation by establishing provincial guidance on identifying and addressing potential negative effects on bats and bat habitats during the planning, construction and operation of wind power projects in Ontario.

MNR’s Guideline to Assist in the Review of Wind Power Proposals: Potential Impacts to Bats and Bat Habitats. Developmental (Working Draft August, 2007) no longer applies to wind power projects being reviewed under the Renewable Energy Approval regulation (O.Reg. 359/09). As interim direction until final Guidelines are approved, the criteria and procedures identified in this proposed draft 2010 Guidelines will be deemed to be acceptable by MNR for wind power projects being reviewed under the REA regulation (O.Reg. 359/09).

Public Consultation:

This proposal has been posted for a 45 day public review and comment period starting April 06, 2010. If you have any questions, or would like to submit your comments, please do so by May 21, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to May 21, 2010 will be considered as part of the decision-making process by the Ministry of Natural Resources if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 010-9521.

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John D. Goudy, Lawyer

John is a litigator whose practice is focused in the areas of commercial and environmental litigation, expropriation law, energy regulation, and regulatory offences. He is particularly interested in agricultural issues and the regulation of agricultural land use, and lives and works on his family’s cash crop farm north of London, Ontario with his wife and three kids.

ACI Published Author

Law of the Lands provides legal information of interest to landowners. If you require legal advice about your particular situation, please click on John's profile for contact information or visit scottpetrie.com.